Barbour v. Barbour

• Decision Date: 18 January 1974
• Docket Number: No. 4241,4241
• Citation: 518 P.2d 12
• Parties: Ralph E. BARBOUR, Appellant (Plaintiff below), v. Margaret Lorene BARBOUR, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 12

518 P.2d 12

Ralph E. BARBOUR, Appellant (Plaintiff below), v. Margaret Lorene BARBOUR, Appellee (Defendant below).

No. 4241.

Supreme Court of Wyoming.

Jan. 18, 1974.

David B. Kennedy of Burgess, Kennedy & Davis, Sheridan, William D. Omohundro, Buffalo, for appellant (plaintiff below).

Lawrence A. Yonkee and Tom C. Toner of Redle, Yonkee & Arney, Sheridan, for appellee (defendant below).

Before PARKER, C. J., McEWAN, GUTHRIE, and McCLINTOCK, JJ., and PEARSON, District Judge (Retired).

Mr. Justice McEWAN delivered the opinion of the court.

This is an appeal by the plaintiff-husband from a decree of divorce granted to him. He argued that the trial court was without jurisdiction to hear the matter because he had filed an affidavit for a change of judge, and the trial court erred in not assigning the case to another judge. He also contended that the trial court erred in denying his motion for a new trial, and the findings with regard to the property division were not supported by sufficient evidence.

Change of Judge

The husband's counsel recognized that he did not follow the procedures of Rule 40.1, W.R.C.P., in that the certificate of counsel was not filed until one day before trial, whereas the rule required that it be filed not later than 15 days before trial. There must be compliance with the rule requirements as to timely filing because the requirement is one of substance and not merely one of form. Although he timely filed an affidavit of prejudice, the certificate of counsel was not filed until January 17, 1973, which was one day before trial. The pertinent portions of Rule 40.1 provide:

'(b)(1) Any party, at least fifteen (15) days prior to the date set for trial, may move for a change of district judge on the grounds (A) that the presiding judge (i) has been engaged as counsel in the action prior to his election or appointment as judge, (ii) is interested in the action, (iii) is kin to a party, or (iv) is a material witness in the action; or (B) that the party or his counsel believes that the presiding judge is biased or prejudiced against the movant. The motion shall be supported by an affidavit made by either the party or his counsel stating one or more of the above grounds, with a certificate of counsel attached that such affidavit is made in good faith and not for the purpose of delay. * * *' (Emphasis supplied.)

The procedure for a change of judge in a civil action was contained in §§ 1-53 and 1-56, W.S.1957, until these statutes were superseded by rule. The statutes required the filing of an affidavit not less than five days before trial but did not require the certificate of counsel. Rule 40.1 was adopted July 12, 1971 and became effective November 18, 1971, which was more than one year prior to the husband's attempted change of judge. The husband argued that the trial court nonetheless should have removed himself from the case and called in another judge because no feature of our system of justice is as important as impartiality, and to deny impartiality because of a procedural defect would be wrong and perhaps a violation of due process. It may be that a party can at any time for just cause and reasons other than those contained in a statute or rule obtain a change of judge. However, we are not called upon to make such determinations in this case because the husband made no such showing. It is clear that he was attempting to obtain a change of judge pursuant to statute because he stated in his affidavit that the affidavit was made pursuant to § 1-53. These statutory and rule provisions have been treated in the nature of a per-emptory challenge to the judge, and, as such, there must be compliance with the rule provisions.

The record does not show that the trial court was called upon to rule on the question of change of judge after counsel filed his certificate. The affidavit of the husband was filed on December 26, 1972, and on January 8, 1973 the trial court advised him the motion was denied because it did not meet the requirements of the rule. On January 17, 1973 the certificate of counsel was filed, and the trial was held on January 18, 1973 as scheduled. Prior to trial the record consisted of 52 pages including motions by each party for a restraining order supported by affidavits, restraining orders, complaints, answers, and counterclaims. Therefore, it may well be that the trial court was not even aware of the certificate of counsel. We are being asked to rule upon a question that was not shown to have been raised in the trial court, which we have said we will not do. ¹ The failure to pursue the matter before the trial court may constitute a waiver. Since the question of the certificate of counsel was not raised in the trial court the issue before us could more properly be categorized as the failure to file the certificate rather than the late filing of the certificate. Since the certificate constitutes an integral part of the motion, the failure to file the certificate means that no proper motion was filed, which has the effect of no motion having been filed. However, as the matter stands before us, we think the result would be the same. Since no proper motion was timely filed the trial judge was not disqualified. State ex rel. Paschke v. District Court of Thirteenth Judicial District, Mont., 514 P.2d 590 at 593; State v. Light, Mo., 484 S.W.2d 275.

New Trial

Following the entry of the decree the husband filed a motion for a new trial which was limited to the issue of the division of property. Although the motion also asked in the alternative that the judgment with regard to the division of property be altered, the questions raised therein are answered in the discussion under this heading and that of 'Division of Property.' His motion, based upon the ground that he had new evidence as to the property of the parties which could not have been produced at the trial, was apparently made pursuant to Rule 59(a)(7), W.R.C.P. We say apparently because neither this rule nor any other authority is cited in that portion of his brief. The sole question before us on this point is whether or not the husband sustained his burden of showing that the evidence he sought to present was newly discovered and could not with reasonable diligence have been produced at the trial. By his motion he sought to present to the trial court figures of his income and disbursements for 1972. He contended that since the trial was held only 18 days after the close of the calendar year 1972 he had not yet compiled the figure for receipts and disbursements for 1972. He offered no evidence on direct examination as to the receipts and disbursements of the parties during 1972 even though this related to the property of the parties. They had operated a ranching business and monies received were deposited in his personal checking account to which the wife had no access, and the items of income and disbursement were within his exclusive knowledge. On cross-examiantion the defendant sought to gain this information, but the husband was very evasive. The record reveals, however, that the items of receipts and disbursements, as contained in an affidavit attached to his motion for new trial, do not materially differ from those items of receipts and expenses to which he testified upon cross-examination. The items listed under disbursements in his affidavit, which could properly be categorized as expenses, were less than the $34,989.86, which he testified on cross-examiantion were his total expenses for 1972.

The evidence which he sought to introduce by...